Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart

Siegel, Reva B., The Yale Law Journal

FEATURE CONTENTS
INTRODUCTION
I. LOCATING CARHART IN CONSTITUTIONAL POLITICS
A. The Reach of Antiabortion Legislation: Carhart and
Incrementalism
B. The Rationale of Antiabortion Legislation: Carhart and Gender
Paternalism
C. Next Steps: Kennedy and the Court After Carhart
II. CONSTITUTIONAL LAW: DIGNITY AND UNDUE BURDEN UNDER
CASEY/CARHART
A. Three Meanings of Dignity
B. Vindicating Dignity Through the Undue Burden Framework
C. Dignity Constraints in Casey's Application of the Undue Burden
Framework
1. Dignity and the Use of Law To Regulate Informed Consent
2. Dignity Informed by History: The Use of Law To Enforce
Family Roles
III. DIGNITY AS A CONSTRAINT ON WOMAN-PROTECTIVE JUSTIFICATIONS
FOR ABORTION RESTRICTIONS
A. Woman-Protective Discourse and Counter-Signals in Carhart
B. Ascriptive Autonomy and Dependence: Gender Paternalism Old and
New
C. Claims on Which Woman-Protective Justifications for Abortion
Restrictions Rest
CONCLUSION

INTRODUCTION

It is commonly assumed that restrictions on abortion protect the unborn--but the Court's recent decision in Gonzales v. Carhart (1) introduces the possibility that a ban on methods of performing certain later abortions might protect women as well. This essay examines the social movement roots of the woman-protective antiabortion argument that appears in Carhart, and identifies constitutional limits on woman-protective abortion restrictions in the commitment to dignity that structures Carhart and Planned Parenthood v. Casey, (2) the case on which Carhart centrally relies.

Appeals to dignity recur in our case law and politics. Carhart appeals to human dignity as a reason to allow government to restrict abortion, (3) while Casey appeals to human dignity as a reason to prohibit government from interfering with a woman's decision whether to become a parent. (4) As I show, in substantive due process and equal protection cases constitutional protections for dignity vindicate, often concurrently, the value of life, the value of liberty, and the value of equality. (5) Attending to the usage of dignity in Casey and Carhart, we can see that a commitment to dignity structures the undue burden test itself, (6) which allows government to regulate abortion to demonstrate respect for the dignity of human life so long as such regulation also demonstrates respect for the dignity of women. (7)

This dignity-based reading of Casey and Carhart is responsive to the language of the cases, the constitutional principles on which they draw, and the social movement conflict out of which the cases have emerged. It supplies a framework for analyzing new, woman-protective justifications for regulating abortion discussed in Carhart, (8) which have been invoked to justify bans and informed consent restrictions in South Dakota and other states. (9) Ultimately, this dignity-based analysis identifies constitutional limitations on woman-protective antiabortion argument that emanate from the Constitution's due process and equal protection guarantees and the social norms and commitments they reflect. Exploring the roots, logic, and limits of the woman-protective antiabortion argument glimpsed in Carhart provides an occasion to appreciate how our Constitution enables community in conflict.

On its face, Carhart seems to be a case about protecting the unborn, not women. In upholding the federal Partial-Birth Abortion Ban Act (10) under Casey, (11) the Court emphasized congressional findings that the banned method had "disturbing similarity to the killing of a newborn infant" (12) and reasoned that the ban "expresses respect for the dignity of human life" (13) and would be useful in stimulating the moral education of the community. (14) But the Court also discussed an additional woman-protective justification for the ban that congressional findings never mention. …

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